Rich Vial: Constitutional lines should not be blurred
It has never been more important than now to maintain true independence in our elections and to respect the checks and balances that Oregonians intentionally created.
Housekeeping
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Now to the post!
Rich Vial is a former Oregon State Legislator, former Deputy Secretary of State and founder of the law firm Vial-Fotheringham, LLC. He provided legal assistance to hundreds of Homeowner Associations throughout the West for four decades and has always had a passion for how communities organize and govern effectively.
Maintaining separation, ensuring checks and balances
Partisanship undermines the checks on power that Oregonians chose to keep our government and its actors accountable. After watching the moving ritual of a Presidential Inauguration, I reflected on the state of our experiment with democracy. While I was encouraged by the ultimately peaceful transition to a new administration, the challenges facing our newest leader of the executive branch are indeed daunting. The key ingredients of a stable, effective democracy seem to be in short supply.
With many seeing this new administration as illegitimate, it has never been clearer than now that the integrity and soberness with which a president exercises their power determines the level of respect and power that they will in fact attract and possess, respectively. President Joe Biden referred to this as leading not by an “example of power” but by the “power of our example.”
This small change of words hopefully evidences that President Biden respects that his power was intentionally limited by our Framers long ago through various Constitutional checks and balances. Hopefully President Biden’s words also reveal that’s he is aware that pushing his power beyond its limits endangers our democracy, our culture, and our progress.
We stand at a time when change is inevitable. We can no more expect to “return to governance as usual,” than we can to “Make America Great Again.” Many feel that Trump was a man of the moment, and in some respects his executive decisions are seen by both sides of the political divide as beyond anything previously seen in the White House. Some have framed his presidency and use of excessive executive power as an aberration, but other signs suggest that “this moment” is more akin to “an era” in which partisan priorities blur the lines that were deliberately set to keep too much power from amassing in the hands of any one branch. As a result of partisan expectations, it may be difficult to change direction.
However, this abuse of power was not a simply a Trump phenomenon. Instead, he was just a symptom of an increasingly difficult time, one in which political battles and global crises have compelled political actors within each branch to reach further than they ought to have. Let’s hope President Biden can move us back toward true separation of powers between the branches and reduce the partisanship that has rendered checks and balances ineffective.
Government is not business, nevertheless it needs executive direction. But determining how to balance the desires of an executive (or executive team) with the desires and needs of those whom they serve is a delicate balance, one which requires constant attention.
The question of where executive power resides today is illustrated in the example of the “Three Bears.” My friend Vincent Kirnack, a social studies and history teacher at Aloha High School in Beaverton, teaches his students with the following example:
In many ways, the story of the formation of our government is like the story of Goldilocks and the three bears. The government under the King George was too strong, so our Founding Fathers purposely made the government under the Articles of Confederation weak—in fact, too weak. Ultimately, in 1787, they created a new government under the Constitution. It was stronger than the Articles, but not as strong as the British monarchy. They made these changes in an effort to get it just right, with each branch having appropriate checks and balances on their counterparts.
But did they? Did they get the balance right? Did they draw clear enough lines?
In the Federal system and in many states as well an arguably overbalanced set of powers rests with the executive branch. Virtually all executive positions are appointed by the President (or Governor) in this version of the separation of powers. For example, although there were originally just four cabinet positions—Secretaries of State, War, and the Treasury, and the Attorney General—the cabinet has grown to 15 key appointments by the President.
All of those cabinet members report directly to the President. And while the Judicial and the Legislative Branches are ostensibly independent, the recent widening of the partisan divide has exposed deep challenges to the reality of this independence. Rather than a system of checks and balances, the executive seems to have succeeded in pulling the other branches into murky Constitutional territory.
Oregon’s Constitution and its different, explicit delegations of power
Oregonians intentionally forged a different path when drawing the lines between the branches and allocating power between them. Several key executive positions are elected independent of the Governor, and exercise significant influence over the functioning of the state. Of these, one of the most significant is the office of Secretary of State.
And while the Secretary of State does succeed to Governor (if elected but not if appointed), their “day job” demands that they focus solely on the job at hand, not the one that may come as a result of some unexpected departure by the Governor. The Secretary oversees some of the most important functions of a transparent democracy, including the functions of auditing, overseeing elections, maintaining the records of the state, and providing information with respect to who is doing business. Sitting by like a Vice President or Lieutenant Governor waiting on deck for the Governor or President to die is simply not the Oregon Way.
So why would our current Secretary of State publicly announce herself as the Lieutenant Governor?
This statement blurs lines that Oregonians deliberately highlighted in sharpie. In my last post I mentioned that the Democrats in Oregon were apoplectic in their insistence that they would “take back” the Secretary of State’s office when Dennis Richardson was elected a little over four years ago. It’s an instinct Republicans have followed as well — seeing the Secretary’s office not as a critical piece in a specific Constitutional system but rather as a battle in a partisan war to inch closer to complete control over the state’s politics.
While I served as Deputy Secretary of State, our office made the suggestion to the legislature that the office become non-partisan. A simple statue change would do it. In fact, it was not long ago that we did just that with our Labor Commissioner, which is now a non-partisan position, and elected with the same open primary process as our judges. But our suggestion was met with little enthusiasm from the controlling party leadership, and went nowhere. Interestingly, the primary argument raised by the opposition was that because of the succession issue the office needed to be a partisan office.
Independence from party power dynamics is exactly what Oregon needs at this time. There is no question that a variety of state agencies would benefit from independence. We’ve seen too many stories outlining problems with our state agencies to think that the current approach is working well. From our unemployment system to our Health Authority, from our IT systems managed by the Department of Administrative Services to the Department of Forestry, and on and on, our agencies would benefit from staying solely focused on outcomes for Oregonians.
All of these functions and many more are led by appointees of the Governor. It is a virtually incomprehensible task for the leaders of agencies to not think about the politics of their decisions. Truly independent legislative, judicial, and indeed auditing functions have never been more necessary, but remain elusive in an environment where party is everything. It has never been more important than now to maintain true independence in our elections and to respect the checks and balances that Oregonians intentionally created.
Let us reach back to the time that our leaders were resolute in their efforts to craft the balance of power that is at the heart of a transparent and healthy democracy. How we elect our leaders and the rules they adopt to effectively govern must reflect a rejection of prioritizing partisan goals over good governance. A good start would be simply to embrace the Oregon Way and take full advantage of the built-in independence our executive system provides for.
Meanwhile, let’s ask that our elected officials stay away from blurring lines that we’re intentionally drawn.
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